Fennell v. United States, 7005.

• Decision Date: 11 December 1933
• Docket Number: No. 7005.,7005.
• Citation: 67 F.2d 768
• Parties: FENNELL v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

67 F.2d 768 (1933)

FENNELL v. UNITED STATES.

No. 7005.

Circuit Court of Appeals, Fifth Circuit.

December 11, 1933.

Hal Browne and David Weintraub, both of San Antonio, Tex., for appellant.

W. R. Smith, Jr., U. S. Atty., of San Antonio, Tex.

Before BRYAN, SIBLEY, and HUTCHESON, Circuit Judges.

SIBLEY, Circuit Judge.

Louis Raymond died in France in 1919 a soldier of the United States, having in force war risk insurance payable to himself. Earl Fennell, claiming to be his brother and sole heir, was in 1931 appointed administrator in Texas. His claim to the insurance being rejected by the United States, he sued both in his individual and representative capacity, lost his case before the judge sitting as jury, and appealed. The facts were agreed on, and in brief are that Louis Raymond and Earl Fennell were born in Texas of an unmarried woman, Ellen Dukes. She died, never having had any other children or a husband. Raymond later moved to Louisiana and was domiciled there when he entered the Army and when he died. Fennell continues to reside in Texas. The insurance was in full force at Raymond's death intestate, he leaving no wife or children. Raymond's father is unknown, and he was never acknowledged by either parent in the formal manner described in the Civil Code of Louisiana to create him a natural child. Fennell also introduced a certified copy of a judgment which purports to show a determination by his court of probate in Texas that he is the sole surviving heir of Raymond and entitled to his insurance and to all his estate. The judgment is dated fifteen months before this suit was filed. The United States successfully contended that under the Louisiana law Fennell was not the heir of Raymond, and that Raymond's personal estate would escheat to the state of Louisiana and in consequence there is no liability for the insurance. Fennell contends that he has been adjudged to be the heir, that he is in fact the heir, both under Texas and Louisiana law, and is entitled to recover.

38 USCA § 514 provides that if no person within the permitted class be designated as beneficiary during the life or by the last will of the insured, the value of the insurance shall be paid to the estate of the insured; but "in cases when the estate of an insured would escheat under the laws of the place of his residence the insurance shall not be paid to the estate but shall escheat to the United States and be credited to the military and naval insurance appropriation." This provision of law is a term of the insurance contract, and is a defense against liability if it be shown that an escheat to the state of insured's residence would follow the payment. Brown v. United States (C. C. A.) 65 F.(2d) 65. The burden of proving this defense, here set up by the answer, is upon the United States. By "residence" is meant the permanent residence, the domicile of the insured, in this case Louisiana. The undisputed legal fact that under the law of Texas Fennell would be the heir of his illegitimate half-brother, Berry v. Powell, 101 Tex. 55, 104 S. W. 1044, 16 Ann. Cas. 986, is not determinative, for by the words of the quoted statute the law of Louisiana must govern.

We think the judgment of the Texas probate court can be given no effect as an adjudication binding on the United States. It is unaccompanied by the record on which it is based, and we can know only by inference what the nature and origin of the case was, what issues were tried, what parties were proceeded against, and how they were served. A judgment without the record on which it was pronounced may be offered to prove the mere fact that such a judgment was rendered or to show a power or title under it, as that one is a receiver or an administrator or has bought property under it. But when the judgment is set up as an estoppel or res adjudicata, the record on which it was rendered ought to accompany it to show the jurisdiction, the parties served, and the issues tried. Kerchner v. Frazier, 106 Ga. 437, 32 S. E. 351; Gibson v. Robinson, 90 Ga. 756, 16 S. E. 969, 35 Am. St. Rep. 250; 22 C. J. § 930; Wigmore on Evidence, § 2110. The recitals of this judgment show that named persons not including the United States appeared and that "all the unknown heirs of Louis Raymond, deceased, and all other persons claiming or pretending to be his heirs had been cited to appear according to law," and articles 3590 and 3595 of Rev. Stats. of Texas are pointed out to us as authority for the proceeding thus to determine heirship; the latter article declaring that the judgment shall be conclusive on such parties as appear and prima facie evidence against all others. But if notwithstanding the pending administration we assume that this was a proceeding under that statute regularly followed out and so one in rem, or quasi in rem to establish a status as heir, we yet think it ineffectual to bind the United States in this case. The Texas probate court had no jurisdiction to decide whether the United States owed a policy of insurance. The United States do not now claim to be heirs of Raymond, nor do they dispute Fennell's claim to be the sole heir to anything that the Texas court may have had before it for administration. This insurance, because suable in Texas under 38 USCA § 445, was no doubt an asset there on which to found jurisdiction to appoint an administrator, but it was not a res which had actually been seized by that court. Personal service on the debtor may give a court jurisdiction quasi in rem over a chose in action. Armour Fert. Works v. Sanders (C. C. A.) 63 F.(2d) 902. But without such service the mere appointment of an administrator or a receiver to collect it will not constitute such a seizure as to enable the court without hearing the debtor to conclude or even prejudice him in respect of it. The citation indeed was not addressed to the United States but only to persons claiming to be heirs at law of Raymond. With citation thus restricted and the res in controversy in no effectual manner seized by the court, there is no possibility of the judgment affecting the liability to pay the insurance without denying due process of law. In Scott v. McNeal, 154 U. S. 34, 14 S. Ct. 1108, 38 L. Ed. 896, administration was granted and property sold of a person supposed to be dead who proved to be alive. The Supreme Court of the state held such proceedings to be in rem and conclusive against him, but the Supreme Court of the United States held them void. It was said, page 46 of 154 U. S., 14 S. Ct. 1108, 1112: "Even a judgment in proceedings strictly in rem binds only those who could have made themselves parties to the proceedings, and who had notice, either actually or by the thing condemned being first seized into the custody of the court." And at page 49 of 154 U. S., 14 S. Ct. 1108, 1114: "As the jurisdiction to issue letters of administration upon his estate rests upon the fact of his death, so the notice given before issuing such letters assumes that fact, and is addressed not to him, but to those who after his death may be interested in his estate, as next of kin, legatees, creditors, or otherwise. Notice to them cannot be notice to him, because all their interests are adverse to his. The whole thing, so far as he is concerned, is res inter alios acta." See, also, Thormann v. Frame, 176 U. S. 350, 20 S. Ct. 446, 44 L. Ed. 500, and cases cited. In Christianson v. King County, 239 U. S. 356, 36 S. Ct. 114, 60 L. Ed. 327, the subject-matter of the proceeding in the probate court was land within its jurisdiction, and the proceeding to escheat it cited all persons to appear. Finally, we suppose from the face of the judgment here offered, that the thing really...